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CACV 202/2022
[2022] HKCA 1864
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 202 OF 2022
(ON APPEAL FROM HCAL 911/2019)
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| RE: |
MANMOHAN SINGH |
Applicant |
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Before: Hon Barma JA and G Lam JA in Court
Date of Judgment: 30 December 2022
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 10 May 2022 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 21 March 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 June 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of India. He entered Hong Kong on 16 December 2014. He overstayed and he subsequently surrendered to the Immigration Department on 6 January 2015. Thereafter, he lodged a non-refoulement claim on 17 March 2015.
3. The applicant’s claim was based on a fear of being harmed or killed by gangsters who were members of the Shiromani Akali Dal Party. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 27 June 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].
5. The applicant appealed to the Board. After a hearing on 4 October 2018, the Board dismissed the appeal on 21 March 2019 by the Board’s Decision. The Board’s Decision covered all four grounds for non-refoulement protection. The Board found that the applicant made bare assertions as regards the material events which occurred in his home country, and that the information and facts provided by him were implausible or unreliable which adversely affected his overall credibility. In any event, the Board found that there were viable options of internal relocation for the applicant.
The Judge’s decision
6. The applicant filed a Form 86 on 3 April 2019 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.
7. In the applicant’s supporting affirmation, he simply stated that he was dissatisfied with the Board’s Decision and that “[he has] problem in [his] own country”.
8. After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [20] of the CALL-1 Form:
“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) .…Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’
17. The applicant has not raised any valid ground to challenge the Board’s Decision. The Board had set out the reasons for its findings. In any event, his sons’ experiences are not personal to the applicant.
18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
19. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.
CONCLUSION
20. I therefore refuse to grant leave for the applicant to apply for judicial review. Accordingly, I dismiss his application.”
Grounds for appeal
9. In the Notice of Appeal filed on 17 May 2022, the applicant merely stated:
“The High Court did not find any error of proceeding but I can show many error. Give me a chance to show the error of the adjudicator. My apply should not be refused.”
10. The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court. We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.
11. The applicant lodged written submissions on 31 May 2022, in which he, essentially, complained that the Board erred in its Decision in law and that the adjudicator did not permit him to make “some points”, without providing particulars.
Discussion
12. The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening. The applicant has wholly failed to do so.
13. In his application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.
14. As to the applicant’s complaint that the Board did not permit him to raise certain points during the hearing, he has failed to particularise his allegations.
15. In any event, as this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge is not required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. The Judge considered the decisions of both the Director and the Board and found no basis for intervening. In our view, he was clearly correct to do so.
16. As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.
17. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
(Aarif Barma)
Justice of Appeal |
(Godfrey Lam)
Justice of Appeal |
The applicant acting in person
[1] [2022] HKCFI 1287
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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